A weblog for students engaged in doctoral studies in the field of human rights. It is intended to provide information about contemporary developments, references to new publications and material of a practical nature.

Monday, 21 July 2014

Charles Ogletree Predicts Abolition of the Dealth Penalty by the United States Supreme Court

The death penalty is incompatible with human dignityBy Charles J. Ogletree Jr.

I
have wondered countless times over the past 30 years whether I would
live to see the end of the death penalty in the United States. I now
know that day will come, and I believe that the current
Supreme Court will be its architect.

In
its ruling in Hall v. Florida in May, the court — with Justice Anthony
M. Kennedy at the helm — reminded us that the core value animating the
Eighth Amendment’s cruel and unusual punishments
clause is the preservation of human dignity against the affront of
unnecessarily harsh punishment. Hall, which prohibited a rigid test in
use in Florida for gauging whether a defendant is intellectually
disabled, was the most recent in a series of opinions
in which the court has juxtaposed retribution — the idea of vengeance
for a wrongdoing, which serves as the chief justification for the death
penalty — with a recognition of our hopelessly complex and fallible
human nature.

What
was important about Hall is the way Kennedy described the logic behind
exempting intellectually disabled individuals from execution: “to impose
the harshest of punishments on an intellectually
disabled person violates his or her inherent dignity as a human being”
because the “diminished capacity of the intellectually disabled lessens
moral culpability and hence the retributive value of the punishment.”
Though the court previously barred imposition
of the death penalty upon intellectually disabled people, as well as
juvenile offenders, Hall marked the first time that it went so far as to
claim that imposing the death penalty upon offenders with these kinds
of functional impairments serves “no legitimate
penological purpose.”

This
is why I see an end coming to the death penalty in this country. The
overwhelming majority of those facing execution today have what the
court termed in Hall to be diminished culpability.
Severe functional deficits are the rule, not the exception, among the
individuals who populate the nation’s death rows. A new study by Robert
J. Smith, Sophie Cull and Zoë Robinson, published in Hastings Law
Journal, of the social histories of 100 people executed
during 2012 and 2013 showed that the vast majority of executed
offenders suffered from one or more significant cognitive and behavioral
deficits.

One-third
of the offenders had intellectual disabilities, borderline intellectual
function or traumatic brain injuries, a similarly debilitating
impairment. For example, the Texas Department of
Corrections determined that Elroy Chester had an IQ of 69. He attended
special education classes throughout school and never functioned at a
higher level than third grade. The state had previously enrolled Chester
into its Mentally Retarded Offenders Program.
Despite these findings, Texas executed him on June 12, 2013.

More
than half of the 100 had a severe mental illness such as schizophrenia,
post-traumatic stress disorder or psychosis. For example, for more than
40 years, Florida’s own psychiatrists found
that John Ferguson suffered from severe mental illness. Ferguson had a
fixed delusion that he was the “Prince of God” who could not be killed
and would rise up after his execution and fight alongside Jesus to save
the United States from a communist plot. When
Ferguson was executed on Aug. 5, 2013, his last words were: “I just
want everyone to know that I am the Prince of God and I will rise
again.” A Florida court had called Mr. Ferguson’s delusions “normal
Christian beliefs.”

Many
other executed offenders endured unspeakable abuse as children.
Consider Daniel Cook, whose mother drank alcohol and abused drugs while
she was pregnant with him. His mother and grandparents
molested him as a young child, and his father physically abused him by,
for example, lighting a cigarette and using it to burn Daniel’s
genitals. Eventually the state placed Daniel in foster care, but the
abuse didn’t stop. A foster parent chained him nude
to a bed and raped him while other adults watched from the next room
through a one-way mirror. The prosecutor responsible for Cook’s death
sentence stood behind him during the clemency process, telling
authorities that he would have taken the death penalty
off of the table had he known of his torturous childhood. Arizona
refused to commute Cook’s sentence, however, and he died by lethal
injection on Aug. 8, 2012.

As
the execution of Elroy Chester, John Ferguson, Daniel Cook and many
more like them illustrates, barring the death penalty for intellectually
disabled and juvenile offenders did not solve the
death penalty’s dignity problem. Rather, those cases gave us cause to
look more closely at the people whom we execute. And when you look
closely, what you find is that the practice of the death penalty and the
commitment to human dignity are not compatible.- - - - -Charles J. Ogletree Jr. is a professor at Harvard Law School.

1 comment:

True human dignity DEMANDS the death penalty for convicted murderers in the first degree. To take the life of a person with malice aforethought means that you have forfeited your right to continue living.

This is true justice for the victim and true justice for society.

A murderer who's kept alive in a jail has the ability to take even more lives -- not only the lives of his or her keepers, but also the lives of his fellow inmates.

Apparently, those who oppose the death penalty for first degree murder have giving no thought to the human dignity of murder victims, or to the human dignity of future murder victims.

The Editorial Team

W. Schabas, Y. McDermott, J. Powderly, N. Hayes

William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr Yvonne McDermott is a Lecturer in Law in Bangor University, UK, where she is also Director of Teaching and Learning and Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (PhD). Her research focuses on fair trial rights, international criminal procedure and international criminal law. Her first monograph, Fairness in International Criminal Trials, will be published by OUP in 2015.

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

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Interested in PhD studies in human rights?

Students interested in pursuing a doctorate in the field of human rights are encouraged to explore the possibility of working at Middlesex University under the supervision of Professor William A. Schabas and his colleagues. For inquiries, write to: w.schabas@mdx.ac.uk.